Defendant appeals as of right from his bench trial conviction
of assault with intent to rob while unarmed (AWIR-U), MCL 750.88;
MSA 28.283. We vacate defendant’s conviction of AWIR-U, remand
for determination if sufficient evidence was presented to convict
defendant of a lesser included offense, and if so, for entry of
a judgment of conviction of such charge and for resentencing.

Complainant Brown, a truck driver, testified that in April 1994,
he was making a delivery of beer to a party store when defendant
approached him at his truck and requested a case of beer. When
Brown refused, defendant threatened him and Brown saw that defendant
had his hand in a diaper bag that he was holding suggesting that
he was in the possession of a gun. Defendant then instructed
Brown to give him two cases of beer and Brown complied by placing
two cases on the sidewalk. As Brown was about to return to his
truck, he saw a nearby police car and reported the incident.

The officers testified that they observed defendant walking down
the street with a diaper bag. They stopped him and found no weapons
on him. Because a crowd gathered, they were unable to recover
the diaper bag but they recovered the two cases of beer that were
still on the sidewalk. Defendant admitted carrying a diaper bag
and requesting a case of beer. But he indicated that he was not
trying to steal the beer by explaining that he continued walking
past the truck after requesting the beer, that the alleged "threat"
was just a line from a television commercial and that he saw the
nearby police car. The trial court stated that the present matter
presented a credibility contest between Brown and defendant.
It stated that it believed Brown’s testimony and found defendant
guilty of AWIR-U.

The elements of AWIR-U are "(1) an assault with force and
violence, (2) an intent to rob and steal, and (3) defendant being
unarmed." People v Chandler, 201 Mich App 611, 614;
506 NW2d 882 (1993). Robbery requires the intent to permanently
deprive the owner of his property. People v King, 210
Mich App 425, 428; 534 NW2d 534 (1995).

On appeal, defendant focuses on the issue of intent. Defendant
first contends that the prosecution failed to present sufficient
evidence of his intention to permanently deprive Brown of his
property to convict him of AWIR-U. When reviewing the sufficiency
of the evidence in a criminal case, this Court views the evidence
in the light most favorable to the prosecution to determine whether
a rational factfinder could have found the essential elements
of the crime proven beyond a reasonable doubt. People v Wolfe,
440 Mich 508, 515; 489 NW2d 748, amended on other grounds 441
Mich 1201-1202 (1992). "Circumstantial evidence and reasonable
inferences drawn therefrom may be sufficient to prove the elements
of a crime." People v Jolly, 442 Mich 458, 466; 502
NW2d 177 (1993). Contrary to defendant’s contention, "it
is unnecessary for the prosecutor to negate every reasonable theory
consistent with the defendant’s innocence." People v
Carson, 189 Mich App 268, 269; 471 NW2d 655 (1991). On the
basis of the evidence presented here, a rational trier of fact
could find that when defendant requested the beer and threatened
Brown, he did so with the intention of permanently depriving Brown
of the beer.

Defendant next argues that the trial court’s findings of fact
were insufficient because they do not address the issue of intent.
Findings of fact are sufficient if it appears from the record
that the trial court "was aware of the issues in the case
and correctly applied the law." People v Legg, 197
Mich App 131, 134; 494 NW2d 797 (1992). A trial court is not
required to make specific findings regarding each element of a
crime. Legg, supra, at 134. Here, the trial court noted
that it was faced with a credibility contest and that it believed
Brown’s testimony over defendant’s testimony. It specifically
found that defendant’s behavior — walking away and not picking
up the cases of beer — was explained by his having seen the police
albeit at a later time than he testified. These findings indicate
that the trial court considered defendant’s arguments regarding
intent, but was unpersuaded by them. We hold that the court’s
findings of fact were sufficient.

Next, defendant contends that one of the trial court’s findings
was contrary to the evidence. On appeal, this Court will not
disturb trial court findings of fact unless they are clearly erroneous.People v Gistover, 189 Mich App 44, 46; 472 NW2d 27 (1991).
Defendant claims that the trial court’s finding that defendant
saw the police before walking away from the beer truck contradicted
his testimony. In fact, defendant testified that he saw the police
car as he was passing Brown and that he saw the police "all
the time." Accordingly, this finding of the trial court
was not clearly erroneous.

While we find no merit in defendant’s arguments regarding the
intent element of AWIR-U, Michigan Supreme Court precedent obligates
us to find that the prosecution failed to introduce sufficient
evidence of another element of AWIR-U: an assault with
force and violence. In Chandler, this Court held that
the assault element of AWIR-U requires "an attempt or offer
to do corporal injury with the present intention and present ability
to carry out that offer, with force and violence . . . ."Chandler, supra at 614-615, citing People v
Sanford, 402 Mich 460, 474, n 1; 265 NW2d 1 (1978). Here,
as in Chandler, the prosecution failed to introduce evidence
of defendant’s present ability to carry out his threat. Defendant
used no physical force or violence, Brown never actually saw a
weapon, the police found no weapon during their search of defendant’s
person and the contents of the diaper bag were never discovered.
Defendant, armed only with a diaper bag, could not have "presently"
carried out his implied threat to shoot Brown. Therefore, underSanford and Chandler, the assault element of AWIR-U
is not met here.

Because the evidence is insufficient to convict defendant of
AWIR-U under Sanford and Chandler, we will vacate
defendant’s conviction of AWIR-U and remand this matter to the
trial court. In such circumstances, the appropriate remedy is
to remand for consideration of entry of a conviction of a lesser
included offense and for resentencing. People v Johnson,
206 Mich App 122, 125; 520 NW2d 672 (1994); Chandler, at
615. Accordingly, on remand, we direct the trial court to determine
if sufficient evidence was presented to convict defendant of a
lesser included offense, and if so, to enter a judgment of conviction
of such charge and resentence defendant.

We question the language in the Michigan Supreme Court’s Sanford
opinion and in Chandler that indicates that an assault
requires a "present ability" to carry out a threat of
violence. This definition is contrary to traditional definitions
of assault that focus on an apparent present ability from
the perspective of the victim. For example, Black’s Law Dictionary
(5th ed) states "Any willful attempt or threat
to inflict injury upon the person of another, when coupled with
an apparent present ability so to do, and any intentional display
of force such as would give the victim reason to fear or expect
immediate bodily harm, constitutes an assault." 2B Gillespie,
Michigan Criminal Law & Procedure (2nd ed), §
1015, p 325 defines assault as "an attempt or offer, with
force and violence, to do corporal hurt to another, with an apparent
present means of carrying out the attempt."

In Sanford, the complainant was actually struck
by the defendants; therefore whether there was the "present
ability" to carry out a threat was not at issue. Sanford
involved a claim that the elements of AWIR-U, MCL 750.88; MSA
28.283 (fifteen year maximum) and attempted unarmed robbery, MCL
750.530; MSA 28.798 and MCL 750.92; MSA 28.287 (five year maximum)
were identical and that it violated equal protection for statutes
prohibiting the same conduct to have different penalties. This
Court had earlier affirmed the convictions for AWIR-U. People
v Sanford, 65 Mich App 101; 237 NW2d 201 (1975). It had defined
criminal assault as "any intentional, unlawful offer of violence
to another with the apparent present ability to carry out the
offer, creating a reasonable fear of immediate injury."Id. at 105. It distinguished AWIR-U from attempted unarmed
robbery on the basis that AWIR-U requires an assault while attempted
unarmed robbery requires either an assault or actual force and
violence (which does not necessarily require that there be a perception
or apprehension of danger prior to its occurrence.) Id.
The Michigan Supreme Court affirmed the convictions for AWIR-U.Sanford, 402 Mich 460. However, it specifically disagreed
with this Court’s definition of assault that required that "the
victim be put in reasonable fear of immediate harm." Id.
at 475, 479. It held, at 479:

We adopt what Perkins on Criminal Law (2d ed), p 117 says is the
majority rule, namely "a simple criminal assault ‘is made
out from either an attempt to commit a battery or an unlawful
act which places another in reasonable apprehension of receiving
an immediate battery.’ "

This definition does not contain an explicit "present ability"
element. However, in discussing AWIR-U, the Sanford Court
stated at 474, n 1:

An assault with intent to rob being unarmed necessarily involves
an attempt or offer to do corporal injury, with the present intention
and present ability to carry out the offer. In other words, there
must be a criminally assaultive act.

Attempted unarmed robbery may or may not include a criminal assault.
An attempted unarmed robbery may also be accomplished by force
and violence or by putting in fear. Attempted unarmed robbery
does not necessarily require an assault. Therefore, it is obvious
that the defendant need not possess the present ability to carry
out the offer.

Therein lies what we believe to be the policy rationale for attaching
a fifteen-year maximum sentence to assault with interest to rob
being unarmed while requiring only a five-year maximum sentence
for attempted unarmed robbery.

An assault with intent to rob being unarmed necessarily involves
an offer to do injury with the present ability to carry out that
offer. Hence, the crime is always more dangerous vis-à-vis
potential victims. [Emphasis supplied.]

This specific discussion of AWIR-U includes a "present ability"
requirement not contained in the Sanford Court’s own definition
of assault at 479. Accordingly, there is some ambiguity in Sanford
regarding whether "present ability" is an essential
element of an assault.

Further, subsequent decisions of the Michigan Supreme Court cast
doubt on whether an assault requires a "present ability"
to carry out a threat. In People v Stevens, 409 Mich 564,
566-567; 297 NW2d 120 (1980), which considered whether an inoperable
starter pistol could constitute a "dangerous weapon"
to support a felonious assault conviction, the Court stated:

Certainly, under People v Sanford, supra, and People
v Joeseype Johnson, 407 Mich 196, 284 NW2d 718 (1979), the
victim’s reasonable apprehension can establish the element
of an assault in a felonious assault prosecution under MCL 750.82;
MSA 28.277. However, those cases provide no authority for the
conclusion that the victim’s apprehension of an object can transform
it into a "dangerous weapon." [Emphasis added.]

Felonious assault is defined as a simple assault aggravated by
the use of a weapon. As such, it includes the element of present
ability or apparent present ability to commit a battery.
[Citations omitted; emphasis added.]

We note that a "present ability" requirement appears
inconsistent with the statutory context of AWIR-U. It is anomalous
for AWIR-U to require that a defendant threatening to shoot someone
have an actual, operational gun while AWIR – armed, MCL 750.89;
MSA 28.284, the more serious offense, requires only the use of
"any article used or fashioned . . . to
lead a person so assaulted reasonably to believe it to be a dangerous
weapon." This anomoly is especially striking because AWIR-U
is obviously a lesser included offense of AWIR-armed.

In light of the troubling consequences of a definition of assault
that rejects the traditional focus on apparent present ability
in favor of a requirement that there be actual "present ability"
to carry out a threat, we urge the Michigan Supreme Court to revisit
this issue. We respectfully direct the Court’s attention to People
v Smith (On Rehearing), 89 Mich App 478; 280 NW2d 862 (1979),
which involved an inmate’s attempt to shoot a guard with the guard’s
unloaded gun. The Smith Court addressed the "present
ability" requirement of Sanford and People v Lilley,
43 Mich 521; 5 NW 982 (1880).[1] The Smith Court rejected
the "argument that an assault conviction requires proof that
the defendant not only attempted a battery but also possessed
the actual means to inflict that battery." Smith,supra at 485. It stated:

First, given the context of the "present ability" language
in Lilley, it is apparent that the Court was discussing
the necessity of the criminal act being sufficiently proximate
to the intended battery to constitute an attempt. Lilley
did not involve the question whether the defendant had the actual
means to execute the battery, but whether the defendant’s acts
had proceeded far enough toward that end to constitute an assault. . . .

Second, we have been unable to discover any Michigan case in which
an assault conviction based upon an attempted battery was precluded
merely because of the factual impossibility of executing the battery. . . .

Third, the rule urged upon us by the defendant has no rational
foundation in law or in policy. Factual impossibility has never
been a defense to a criminal attempt. Furthermore, we perceive
no good reason for exculpating a defendant charged with attempted
battery because fortuitous circumstances unknown to him prevented
his achieving his criminal object. The instant case amply demonstrates
the absurdity of such a rule.

Accordingly, we hold that if a defendant intends to commit a battery
and perpetrates acts sufficiently proximate to that end to constitute
an attempt, he is guilty of a criminal assault notwithstanding
the absence of his actual present ability4 to commit
the battery. [Citations omitted.]

in Lilley and more recently in People v Sanford,
402 Mich 460, 265 NW2d 1 (1978); we are merely construing and
applying it in a manner consistent with the intent of the authors
of Lilley, with the historic common-law definition of assault,
and with common sense.

We agree with the Smith Court’s analysis of "present
ability" with respect to assault. The Lilley Court
clearly used the "present ability" language to convey
the requirement that a defendant’s actions must proceed far enough
to constitute an attempted battery. In neither Lilley
nor Sanford was the issue whether the defendant had the
means to execute a threatened battery. To the extent that Sanford
indicates that an assault requires a "present ability"
to carry out an act of violence, and consequently that the factual
impossibility of executing a threatened battery is fatal to a
finding of assault, we believe Sanford has taken Lilley
out of its long-standing historical context.

Despite our deep misgivings regarding the assault definition
set forth in n 1 of Sanford, and reiterated in Chandler,
it has been set forth explicitly by the Supreme Court. Accordingly,
we follow it and vacate defendant’s conviction of AWIR-U. We
remand for determination if sufficient evidence was presented
to convict defendant of a lesser included offense, and if so,
for entry of a judgment of conviction of such charge and for resentencing.
We do not retain jurisdiction.

Now there may be an intent to commit violence, and this accompanied
by acts preparatory thereto, which if followed up would clearly constitute
an assault, yet owing to the distance and surrounding circumstances, no
possible assault would have been committed. . . . Other facts must be
added, and this we shall see must be a present ability to carry out the
intent. The act done must have been sufficiently proximate to the thing
intended.

* * *

An assault is defined to be an inchoate violence to the person of
another, with the present means of carrying the intent into effect.
Threats are not sufficient; there must be proof of violence actually
offered, and this within such a distance as that harm might ensue if
the party was not prevented.